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Ethics of Virtual Consultations
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On Balance

Ethics of Virtual Consultations

By Megan Zavieh
On Balance by Megan Zavieh

Read more from Megan Zavieh here.

The COVID-19 shutdown has sent many a lawyer from in-person meetings with potential new clients to the world of virtual consultations. If this gives you anxiety, here are a few things to think about to ensure your new way of working complies with the ethics rules.

Virtual Consultations Are Permitted

First off, it is absolutely fine to meet with potential clients by phone or video. There has never been a requirement that we meet them in person. A lot of lawyers are accustomed to it, but that does not mean it was ever required.

The Same Rules Apply

Rather, the same basic rules that have always governed meeting in person also govern consulting from an acceptable social distance. Here is an overview:

  • Run a conflicts check before you meet with a potential client.
  • Clarify whether the meeting is exploratory or whether you will be providing legal advice.
  • You may charge for consultations, but if you do, make sure the scope of the service provided for that consultation fee is clear.
  • Your consultation places upon you certain duties to your prospective client, even if they do not hire you beyond that meeting. Make sure you understand what your state’s rules require of you after the meeting ends.
  • Consultations should be conducted in private, to avoid divulging any confidential information.
  • If a client provides you with documents, ensure that you handle them carefully to avoid inadvertent disclosure.
  • After the consultation, follow up with an engagement or non-engagement letter so that everyone is clear on what relationship exists going forward.

Applying the Rules Virtually

What can be confusing is how to implement these basic rules in a virtual world.

Conflicts Checks

You should run conflicts checks for virtual consultations just as with any in-person meeting. Hopefully, your office already obtains the information necessary to run a conflicts check before the client enters your waiting room. If not, this is a great time to implement a process to avoid discovering conflicts when a potential client is literally at your door. This is good practice, no matter how you meet.

A simple way to do this is to ask for conflict check information when the consultation appointment is made. This can be through a web-based form on an automated scheduling app, through email before a meeting, or over the phone if clients call to schedule with you. Run the conflict check immediately upon booking an appointment. This way, you can both free up your calendars (and the client can quickly find another lawyer) if it turns out you cannot assist.

Terms of the Consultation

The terms of your consultation should be made clear to the potential client at the outset of any meeting. When you meet in person, this can be done orally (though that is not a great practice) or by providing a written explanation of what you can and cannot do in the consultation meeting. For virtual consultations, it is simplest to lay out the terms of your consultation in writing via an email confirmation or a web-based scheduler that requires the client to agree to the terms.

The consultation terms should include items such as:

  • Whether there is a charge for the meeting.
  • Whether it establishes an ongoing attorney-client relationship or (more likely) whether it is a limited scope agreement just for that meeting.
  • Whether you will be providing legal advice (you probably should be if you are charging for it) or simply obtaining information to allow you to quote a fee and describe the process for resolution of their matter.

It is bad for business and poor ethics practice to have a meeting when the potential client is uncertain what she will be getting from the meeting. Establishing clear expectations before the meeting commences helps avoid pitfalls. For example, if a potential client believes that by meeting with you and discussing his case, you are agreeing to take on his matter, you and the client may leave the meeting with two very different beliefs about the next steps. You may be expecting to hear from them if they choose to hire you; they may believe they have already hired you and that you will take steps to protect their legal rights.

Confidentiality of Meetings

Perhaps the biggest change from in-person meetings to virtual ones is the security of the meeting itself. When meeting a client in the office, most lawyers know to close the door and have a private conversation. We understand we should not be holding these meetings at coffee shops, restaurants or other public places. On the phone or by video, it is much easier to violate confidentiality inadvertently.

With the coronavirus, most of us are working from home, where our biggest security risk to a phone call is a toddler overhearing the conversation. Keep in mind, though, even as we move past the virus and back to real life, we cannot be having confidential client phone calls in public places where they can be overheard by anyone else. At home, family members should also be excluded from hearing confidential phone calls.

Video consultations are somewhat more concerning from a security standpoint, but this is also fairly manageable. While Zoom did have some security concerns as usage skyrocketed over the past month, these have largely been addressed. Lawyers are not required to ensure encryption on all tech-driven communications. Rather, ethics rules and opinions make clear we must use a reasonable degree of care to ensure security. So, use waiting rooms and password-protected links in Zoom, and consider other apps such as Legaler for legal consultations by video. And do not publish unsecured meeting room links on social media. Become familiar with how your video conference platform works and use it properly.

Related: “Getting Started With Zoom — and Using It Securely” by Sharon Nelson and John Simek

Confidentiality of Documents

Clients often need to share documents with their lawyer to have a productive consultation. After all, if a client has a contract dispute, it is probably best that you actually read the contract, versus them just telling you what they think it provides. Meeting in person allows clients to bring copies with them, ensuring no data security breaches. For virtual consultations, email is probably as secure as you need it to be for providing initial consultation documents. However, if you are dealing with highly sensitive documents, consider encrypted email or secure client portals. Clients will often be providing nonprivileged documents (such as contracts or legal pleadings), so judge the required level of security by your practice area and the types of documents clients typically bring to consultations.

The more sensitive or confidential the document, the higher level of security you should employ.

Virtual Consultations Are Necessary

In the age of coronavirus and depleted government stimulus funds, law firms must continue to operate as close to normal as possible. This means we must continue to meet with potential clients. For the time being, the only way this will happen is virtually. Follow these basic points for secure virtual consultations.

Related: “Remote Client Intake: Limiting Risks While Expanding Access” by Will Hornsby

Illustration ©iStockPhoto.com

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Megan Zavieh Megan Zavieh

Megan Zavieh is the creator and author of “The Playbook: The California Bar Discipline System Practice Guide.” At Zavieh Law, she focuses her practice exclusively on attorney ethics, providing representation to attorneys facing disciplinary action and guidance on questions of legal ethics. Megan is admitted to practice in California, Georgia, New York and New Jersey, as well as in multiple federal courts and the U.S. Supreme Court. She podcasts on Lawyers Gone Ethical, blogs on ethics at California State Bar Defense and tweets @ZaviehLaw.

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